The Soldiers Obligation to Die When Ordered to Shoot Civilians or Face Death Himself

Valerie Epps*
INTRODUCTION Whether the defense of duress is available for murder or other serious crimes has been the subject of scholarly debate for decades.1 That debate has also raised much contention when the defendant has been accused of serious international crimes.2 This article examines the treatment of the defense of duress in the context of the Yugoslav Tribunals decision in the case of Prosecutor v. Drazen Erdemovic,3 and also attempts to place the debate in the broader context of the jurisprudence of international criminal culpability. The International Military Tribunal at Nuremberg rejected the
Professor of Law and Director of the International Law Concentration, Suffolk University Law School, Boston. Nicole Frederichs, who has served as my research assistant, deserves much thanks for her diligent and ever cheerful help. 1. See generally, Lon L. Fuller, The Case of the Speluncean Explorers, 62 HARV. L. REV. 616 (1949). 2. See George C. Christie, The Defense of Necessity Considered from the Legal and Moral Points of View, 48 DUKE L.J. 975 (1999); Major Stephen C. Newman, Duress as a Defense to War Crimes and Crimes Against Humanity-Prosecutor v. Drazen Erdemovic, 166 MIL. L. REV. 158 (2000); David Turns, The International Criminal Tribunal for the Former Yugoslavia: The Erdemovic Case, 47 INTL & COMP. L.Q. 461 (1998); Sienho Yee, The Erdemovic Sentencing Judgement: A Questionable Milestone for the International Criminal Tribunal for the Former Yugoslavia, 26 GA. J. INTL & COMP. L. 263 (1997); and Abbe L. Dienstag, Comment, Federenko v. United States: War Crimes, the Defense of Duress, and American Nationality Law, 82 COLUM. L. REV. 120 (1982). 3. Prosecutor v. Erdemovic, Case No.: IT-96-22-T, Sentencing Judgement, 29 November 1996; Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Judgement, 7 October 1997; and Prosector v. Erdemovic, Case No.: IT-96-22-Tbis, Sentencing Judgement, 5 March 1998.
*

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proposition that international law is concerned with the actions of sovereign States, and provides no punishment for individuals.4 The Tribunal stated that [c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.5 The creation of the International Criminal Tribunals for the Former Yugoslavia6 and for Rwanda7 carry forward the principle of individual responsibility for violations of certain international crimes defined by the statutes applicable to each tribunal.8 Criminal law, both domestic and international, requires an intentional act on the part of the culprit to secure conviction. Broadly speaking, the law requires the defendant to have intended the natural consequences of his voluntary acts. Criminal law has always accepted the notion that there are certain defenses, available to the defendant, even if it is proved that he committed the criminal act. A number of these defenses, including duress, essentially negate the intent necessary for conviction and demonstrate that the actions were not voluntary. Generally, when a criminal defendant raises the defense of duress, the court will examine whether the defendant was threatened by a force to such an extent that a person of reasonable firmness in his situation would have been unable to resist.9 If a sufficient threat is found, the defendant will be acquitted. In such a situation, the defendant, is not regarded as either having acted voluntarily or having the necessary criminal intent. In the famous British case of Regina v. Dudley & Stephens,10 sailors were adrift at sea and starving. The sailors killed and ate a dying cabin boy and were convicted of murder despite the courts acknowledgment that all would have perished had they not eaten the boy. Though the case is strictly

4. International Military Tribunal (Nuremberg) Judgement and Sentences (Oct. 1, 1946), reprinted in 41 AM. J. INTL L. 172, 220 (1947). 5. Id. at 221. 6. S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827 (1993) [hereinafter ICTY Statute]. This statute has been amended three times, most recently by U.N. Doc. S/RES/1411 (2002). 7. S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994) [hereinafter ICTR Statute]. 8. See ICTY Statute, supra note 6, arts. 2, 3, 5; ICTR Statute, supra note 7, arts. 2, 3, 4. 9. MODEL PENAL CODE, 2.09 (1) (1962). 10. 14 Q.B.D. 273 (1884), reprinted in THE ALL ENGLAND LAW REPORTS REPRINT 1881-1885 61 (G.F.L. Bridgman, Esq., O.B.E. ed., Butterworth & Co. Ltd. 1964). There is a similar American case, U.S. v. Holmes, 26 F. Cas. 360 (C. C. E. D. Pa. 1842) (No. 15, 383), where sailors in a leaky longboat threw some of the passengers overboard to lighten the load and save themselves.

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one of necessity11 rather than duress, the principle of an outside force overbearing the will of the defendant is the same. Common law jurisdictions tend to allow the defense of duress for all criminal activities, except murder, where the criminal acts were carried out under threat of imminent serious bodily injury or death. However, a number of American states have adopted the Model Penal Code, which allows duress as a defense even for murder. The refusal to allow the defense of duress in murder cases can be traced to William Blackstones remark that a person ought rather to die him[s]elf, than e[s]cape by the murder of an innocent.12 The idea behind the exception for murder is that a person who, for example, is told to kill another person or face death himself has no basis upon which to prefer his own life to anothers. Civil law countries and the Model Penal Code reject this exception based on the argument that the instinct for self-preservation is so strong that very few people, if any, will prefer preserving someone elses life over their own and that the law should not require the criminal defendant to make a choice that the overwhelming majority of people would not make. The preference equation may be resolved differently if the defendant has a special relationship to the third party. For example, many parents would choose to die if the choice was between their life and their childs. The Erdemovic case raises the important question of whether the defense of duress should be available to those accused of war crimes. The facts of the case, however, present a troubling variation on the usual dilemma of preferring one life for another. Erdemovic was presented with the choice of killing unarmed civilians during wartime or adding one more to those slaughtered by a firing squad, namely himself. This new factual twist to the old problem resulted in a serious division between the judges on the Yugoslav Tribunal who heard Erdemovics appeal. MANIFESTLY ILLEGAL ORDERS There is a line of authority, running from at least as far back as the Lieber Code,13 to support the proposition that the defense of superior orders will not serve to exonerate a soldier who violates the laws of war if

11. The defense of necessity refers to coercion by physical force whereas duress refers to threats by one human being against another; see also infra note 122. 12. 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 30 (Dawsons of Pall Mall, 1966)(1765-1769) available at http//:www.yale.edu/lawweb/avalon/blackstone/bk4ch2.htm (last visited April 5, 2003). 13. Instructions for the Government of Armies of the United States in the Field, reprinted in THE LAWS OF ARMED CONFLICTS 3 (Dietrich Schindler & Jiri Toman eds., 3d ed. 1988).

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the superiors order was manifestly unlawful.14 Such an order may serve to mitigate the sentence but will not prevent the soldier from being found guilty of the offense.15 The cases where a low level soldier raises the defense of having been ordered to violate the law by a commanding officer are always difficult. Usually the commanding officer will deny that such an order was given,16 so that the trier of fact first has to decide whether to believe the soldier. Even if the soldier is believed, there is always a shadow of doubt when the basis of the defense has been disputed. Where it is clear that the soldier was given an order which he knew, or should have known, was clearly illegal, the cases are still troubling because we know that recruits to the armed forces are indoctrinated from the first day on the necessity of obeying orders from superior officers and because the soldier knows that if he wrongly disobeys an order, the consequences will be severe.17 If the soldier wrongly disobeys an order during hostilities,
14. Rome Statute of the International Criminal Court, art. 33, U.N. Doc. 32/A/CONF. 183/9 (July 17, 1998), reprinted in 37 I.L.M. 999 (1998) [hereinafter ICC Statute]. The statute provides in part:

1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless Y (C) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crime against humanity are manifestly unlawful. See United States v. Calley, 22 C.M.A. 534 (1973) revd sub. nom. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), revd, 519 F.2d 184 (5th Cir. 1975), cert. denied, Calley v. Hoffman, 425 U.S. 911 (1976). Calleys defense counsel argued that the orders he received to kill everyone in the village were not palpably illegalY. Calley, 22 C.M.A. at 539. However, the court ruled that the proper test was that: The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superiors order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful. Id. at 542. See generally, Regina v. Finta, [1994], 1 S.C.R. 701 which includes a history of the defense of superior orders together with the establishment of the manifestly illegal test. See also, L.C. GREEN, Superior Orders and the Reasonable Man, in ESSAYS ON THE MODERN LAWS OF WAR 43, 49 (1985). 15. See ICTY Statute, supra note 6, art. 7 (4); ICTR Statute, supra note 7, art. 6 (4); ICC Statute, supra note 14, art. 31, 33, 78; Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, art. 8, signed London, 8 Aug. 1945, entered into force 8 Aug. 1945; 59 Stat. 1554, 82 U.N.T.S. 279 [hereinafter The London Charter]. 16. See, e.g., Calley, 22 C.M.A. at 538. 17. See, e.g., Uniform Code of Military Justice, 10 U.S.C. 890(2) (2000): Any person subject to this chapter who: Y (2) willfully disobeys a lawful

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the result could even be his own execution.18 Military law puts the soldier operating under such orders in an almost untenable situation and, no matter how heinous the soldiers alleged acts, none but the hardest hearted can fail to be moved by the soldiers dark dilemma. In a very real sense the soldier is under duress, but international and domestic military law has been clear that the soldier obeys the manifestly illegal order at his peril and if he makes the wrong choice, he will bear the consequences.19 International law has decided to reject the defense of duress in such circumstances preferring the preservation of the victims life to the exoneration of the soldier. The statutes for the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court all have roughly similar provisions making it clear that obeying illegal orders does not relieve the soldier from criminal responsibility but may mitigate the sentence.20 The statutes reflect the same provisions found in the London Charter, which governed the Nuremberg Tribunal.21 THE ERDEMOVIC FACTS The tale of Drazen Erdemovic presents an even darker dilemma and one that has not received much legal attention. Erdemovic, a Croat, was a low ranking member22 of the Bosnian Serb army during the Balkan war. On July 16, 1995, he found himself as part of a firing squad located at the Branjevo farm at Pilicia in Eastern Bosnia near Srebrenica. A number of unarmed civilian Muslim men had been rounded up and were being detained by the Bosnian Serb army. Erdemovic claims that he was ordered to shoot the civilians by his superior officer. In terms of the laws of war,

command of his superior officer; shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if committed at any other time, by such punishment, other than death, as a courtmartial may direct. Id. See id. See, e.g., The London Charter, supra note 15, art. 8. See ICTY Statute, supra note 6, art. 7 (4); ICTR Statute, supra note 7, art. 6(4); ICC Statute, supra note 14, arts. 31, 33, 78. 21. See The London Charter, supra note 15, art. 8. 22. See Prosecutor v. Erdemovic, Case No.: IT-96-22-T, Sentencing Judgement , 29 November 1996, para. 79. Erdemovic stated that he had been a sergeant in command of a small unit but that he had been demoted before taking part in the alleged crimes. There were no documents presented to confirm his rank and the indictment simply describes him as a soldier in the 10th Sabotage Unit of the Bosnian Serb Army. The Trial Chamber describes him as low ranking.
18. 19. 20.

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the Bosnians were either unarmed civilians23 or they were prisoners of war.24 In either case, the Bosnian Serb army was definitively prohibited from shooting, or in any way mistreating, the Bosnians.25 Erdemovic claims that he remonstrated with his commander when ordered to shoot: When I refused, they told me: >If youre sorry for them, stand up, line up with them and we will kill you too.26 Erdemovic concluded that, if he had refused to shoot the civilians, he would have been lined up with them and shot by the firing squad. He stated that he was not sorry for myself but for my family, my wife and son who then had nine months.27 He reasoned that the civilians were going to be shot by the firing squad no matter what he did and that the only result of his refusal to shoot the men would be that one more person, namely Erdemovic himself, would die. As a result, he joined the firing squad and shot the civilians. A total of 1,200 unarmed civilians were killed over a five-hour period.28 It was estimated that Erdemovic was responsible for the death of somewhere between ten and one hundred people. 29 ERDEMOVICS DEFENSE Erdemovics defense was based not simply on the need to obey superior orders that he, and his lawyers, well understood would not exculpate him but on the notion that his commanding officer placed him under duress, where he could either obey an illegal order or face death. The Yugoslav Tribunal, both at the trial and appellate level, decided that the defense of duress could not be accepted with the result that the law required him to sacrifice his own life with no hope of saving the civilians rather than obey the illegal order to shoot the civilians.30 The Erdemovic case is heartrending for a number of reasons quite apart from the horrendous slaughter of the Muslim men and boys. If Erdemovic
23. See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516, arts. 3, 4 (entered into force 21 October 1950). 24. See Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135, 6 U.S.T. 3316, arts. 3, 4 (entered into force 21 October 1950). 25. See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, supra note 23, at arts. 3, 13-78; Geneva Convention Relative to the Treatment of Prisoners of War, supra note 24, at arts. 3, 12-108. 26. Prosecutor v. Erdemovic, Case No.: IT-96-22-T, Sentencing Judgement , 29 November 1996 para. 10. 27. Id. 28. See id. para. 85. 29. See id. 30. See id. para. 91; Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Judgement, 7 October 1997, para. 19.

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had not decided to tell his story, there is every reason to think that the world would never have heard of him or of his crimes. The Prosecutor stated that without Erdemovics statements he would not have known of the massacres at the Branjevo farm and the killing of another 500 civilians in the public building at Pilicia. Erdemovic has cooperated with the Prosecutors office in The Hague and provided considerable evidence about the massacres at Pilicia. He has also provided specific evidence in hearings against Radovan Karadzic and Ratko Mladic.31 ERDEMOVICS GUILTY PLEA AND SENTENCING On May 31, 1996, Erdemovic pled guilty to one count of a crime against humanity.32 He was initially sentenced to ten years imprisonment, with time held in detention deducted.33 The trial court considered the following circumstances to mitigate his punishment: his youth at the time the crimes were committed; his low military rank; his remorse; his voluntary surrender; his cooperation with the Prosecutors Office; the fact that he posed no on-going threat; and that he had a personality capable of reform.34 After his appeal, the case was remanded to a new Trial Chamber where Erdemovic was permitted to replead to the charges. On January 14, 1998, he pled guilty to the alternative charge of a violation of the laws and customs of war, rather than pleading guilty to the charge of a violation of a crime against humanity.35 The Prosecutor withdrew the latter charge. After a sentencing hearing, the Trial Chamber reduced Erdemovics sentence to five years imprisonment with time deducted for the period already spent in custody.36 THE DURESS OR URGENT NECESSITY DEFENSE IN THE TRIAL CHAMBER In pleading guilty, Erdemovic raised the defenses of urgent necessity to obey his military superior and the physical and moral duress stemming from fear for his own life and that of his wife and child.37 The court thus had to consider whether these defenses might be regarded as a defence for
31. See Prosecutor v. Erdemovic, Case No.: IT-96-22-T, Sentencing Judgement, 29 November 1996, para. 96. 32. See id. para. 3. 33. See id. at Disposition. 34. See id. para. 99. 35. See Prosecutor v. Erdemovic, Case No.: IT-96-22-Tbis, Sentencing Judgement, 5 March 1998, at Disposition. 36. See id. 37. Summary of Trial Chamber Judgement: Prosecutor v. Erdemovic, Case No.: IT96-22-T, Sentencing Judgement, 29 November 1996, para. 14.

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the criminal conduct which might go so far as to eliminate the mens rea of the offence and therefore the offence itself.38 In other words, although the ICTY Statute only permits mitigation of punishment for obeying illegal orders,39 not removal of criminal responsibility, the court had to consider whether the defenses proffered justified the acts. If so, the court would have had to reject the guilty plea. An accused that pleads guilty but at the same time asserts the elements of a defense, which, if proved, would exonerate him, is not knowingly and clearly waiving his right to a trial.40 The Trial Chamber recognized that, although the current statute is silent on the defenses of duress or urgent necessity, the International Military Tribunal at Nuremberg and other military courts have permitted duress and necessity to remove responsibility for a crime in certain very limited circumstances.41 In other cases, duress or necessity was merely considered

See id. See ICTY Statute, supra note 6, art. 7 (4). See Rule 62 bis of the Rules of Procedure and Evidence of ICTY, U.N. Doc. IT/32/Rev.26 (2002), available at http://www.un.org/icty/legaldoc/index.htm (last visited on April 5, 2003) [hereinafter ICTY Rules]. The rule states: If an accused pleads guilty in accordance with Rule 62 (vi), or requests to change his or her plea to guilty and the Trial Chamber is satisfied that: (i) the guilty plea has been made voluntarily; (ii) the guilty plea is informed; (iii) the guilty plea is not equivocal; and (iv) there is a sufficient factual basis for the crime and the accuseds participation in it, either on the basis of independent indicia or on lack of any material disagreement between the parties about the facts of the case, the Trial Chamber may enter a finding of guilty and instruct the Registrar set a date for the sentencing hearing. Id.
41. See Trial of Alfried Felix Alwyn Krupp von Bohlen and Halbach and eleven others, U.S. Military Tribunal, Nuremberg, 17 November 1947-30 June 1948, Case No. 58, The United Nations War Crimes Commission, Law Reports of Trials of War Criminals [hereinafter L.R.T.W.C.], Vol. X, at 147; Einsatzgruppen Case, In re Ohlendorf and Others, quoted in L.R.T.W.C., Vol. XV, at 174. See also The German High Command Trial, Trial of Wilhelm von Leeb and thirteen others, U.S. Military Tribunal, Nuremberg, 30 December 1947-28 October 1948, Case No. 72, L.R.T.W.C., Vol. XII, at 72; I.G. Farben Case, Trial of Karl Krauch and twenty-two others, U.S. Military Tribunal, Nuremberg, 14 August 1947-29 July 1948, Case No. 57 L.R.T.W.C., Vol X, at 57; Trial of Friedrich Flick and five others, U.S. Military Tribunal, Nuremberg, 20 April 1947-22 December 1947, Case No. 48, L.R.T.W.C., Vol. IX, at 20; Trial of Erhard Milch, U.S. Military Tribunal, Nuremberg, 20 December 1946-17 April 1947, L.R.T.W.C., Case No. 39, Vol. VII, at 40; Trial of Lieutenant General Shigeru Sawada and three others, U.S. Military Commission, Shanghai, 27 February 1946-15 April 1946, Case No. 25 L.R.T.W.C., Vol. V at 18-19; Trial of RearAdmiral Nisuke Masuda and four others of the Imperial Japanese Navy, Jaluit Atoll Case,

38. 39. 40.

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as an element for mitigation of the sentence.42 The Trial Chamber noted that the report of the Secretary-General of the United Nations on the ICTY Statute had addressed duress in the context of superior orders and noted that the superior order may be considered in connection with other defenses such as coercion or lack of moral choice.43 In this case, the trial judges did not consider that the defenses fell within the narrow class of cases which warranted full exculpation, although they recognized that the WWII cases, which had rejected defenses of duress or necessity, had involved officers claiming such defenses rather than a rank and file soldier, as here.44 In analyzing the mitigating circumstances occurring at the time of the criminal act (as opposed to the accuseds attitude after the act), the Trial Chamber listed questions to be addressed relating to urgent necessity stemming from duress and a superior order:45
- could the accused have avoided the situation in which he found himself ? - was the accused confronted with an insurmountable order which he had no way to circumvent? - was the accused, or one of his immediate family members, placed in danger of immediate death or death shortly afterwards? - did the accused possess the moral choice to oppose the orders he had received? Had he possessed that freedom, would he have attempted to oppose the orders?46

The Trial Chamber listed the above issues for consideration when

U.S. Military Commission, U.S. Naval Air Base, Kwajalein Island, Kwajalein Atoll, Marshall Islands, 7-13 December 1945, Case No. 6, L.R.T.W.C., Vol. I, at 74-76, 79-80; Trial of Wilhelm List and Others, U.S. Military Tribunal, Nuremberg, 8 July 1947-19 February 1948, L.R.T.W.C., Case No. 47, Vol. VIII, at 50-52; and 1956 U.S. Dept of the Army, Field Manual 27/10 501 (1956). 42. See RU v. Eck (Peleus case), L.R.T.W.C. Vol. I at 21; U.S. v, Sawada, L.R.T.W.C. Vol V at 13-14; U.S. v. Von Leeb (High Command case), L.R.T.W.C. Vol. XII, at 1; XI Trial of War Criminals (T.W.C.) 1, at 563; France v. Carl Bauer, L.R.T.W.C. Vol. VIII, at 15; U.S. v. Wilhelm List (Hostage case), L.R.T.W.C. Vol. VIII, at 74-76; U.S. v. Ohlendorf (Einsatzgruppen case) (1948) 4 T.W.C., at 1. 43. The Report of the Secretary General Pursuant to Paragraph 2 of S.C. Res. 808, U.N. Doc. S/25704, para. 57 (1993). 44. See Prosecutor v. Erdemovic, Case No.: IT-96-22-T, Sentencing Judgement, 29 November 1996, paras. 92-95. 45. See id. para. 89. 46. Id.

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addressing the defense of necessity or duress but did not undertake any further analysis because Erdemovic provided no corroborating evidence of his version of the events constituting his defense.47 The judges, therefore, refused to accept his defense of urgent necessity or duress even though they recognized that some credibility may be given to the overall account of the accused.48 The Trial Chamber did not engage in any discussion of why Erdemovics defense required corroborative evidence.49 One can only suppose that the judges were concerned about the ease of raising such a defense if no corroborative evidence were required. The Trial Chamber was thus in the unusual position of recognizing that a plea of duress or necessity, if proved, could exonerate the accused who had, nevertheless pled guilty. In such circumstances, the Trial Chamber could not have accepted the guilty plea because the plea would have revealed a defense, which could have exonerated the accused. In this case, however, having discovered that defense counsel had no evidence for the proffered defense, other than Erdemovics word, the judges reached the evidentiary conclusion that they could not accept the defense as a matter of fact.50 That being the case, the defense collapsed and thus there was no reason not to accept the guilty plea. In other words, although the Trial Chamber was, in principle, ready to hear defenses based on duress or necessity, it was not prepared to find in favor of any defendant who could not present corroborating evidence on such defenses. THE APPEAL CHAMBER JUDGMENT OF 7 OCTOBER 1997 On appeal, the Appeals Chamber was presented with the issue of whether the Trial Chamber correctly accepted the guilty plea. That issue turned on the embedded issue of whether duress or necessity were exculpatory defenses and, if so, whether such defenses require corroborative evidence.51 If necessity or duress could be accepted as exculpatory defenses, then the Trial Chamber should not have accepted the plea, unless such defenses always require corroborative evidence. If the defenses of duress or necessity were simply unavailable for charges of crimes against humanity or violation of the laws and customs of war, then
Id. para. 90. Id. The Appeals Chamber determined that the requirement of corroborative evidence to establish a defense of duress or necessity was not justified. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint Separate Opinion of Judges McDonald and Vohrah, 7 October 1997. 50. See Prosecutor v. Erdemovic, Case No.: IT-96-22-T, Sentencing Judgement, 29 November 1996, para. 91. 51. See Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint Separate Opinion of Judges McDonald and Vohrah, 7 October 1997, para. 90.
47. 48. 49.

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the Trial Chamber would have been correct in accepting the guilty plea. There were several grounds of appeal, but essentially one argument related to duress. Although Erdemovic was guilty of the offense, it was argued that his sentence be commuted or considerably reduced on the ground that the Trial Chamber should not have required corroboration of the defenses of duress or necessity, given the fact that the only evidence of Erdemovics guilt was his uncorroborated testimony that he participated in the firing squad?52 In other words, the appeal was not based on the theory that duress or necessity should have been accepted as an exculpatory defense, but rather that duress and necessity should have been accepted as arguments in mitigation of punishment without the requirement of corroborative testimony.53 The Appeals Chamber, however, decided to raise certain issues on its own authority, all revolving around the validity of Erdemovics guilty plea. It addressed the following questions:
(1) In law, may duress afford a complete defence to a charge of crimes against humanity and/or war crimes such that, if the defence is proved at trial, the accused is entitled to an acquittal? (2) If the answer to (1) is in the affirmative, was the guilty plea entered by the accused at his initial appearance equivocal in that the accused, while pleading guilty, invoked duress? (3) Was the acceptance of a guilty plea valid in view of the mental condition of the accused at the time the plea was entered? If not, was this defect cured by 54 statements made by the accused in subsequent proceedings?

The Appeals Chamber found unanimously that Erdemovics plea was voluntary but, with one dissent, that the plea was not informed. It was unclear whether Erdemovic understood the difference between the two charges (crimes against humanity or violation of the laws and customs of war) in light of the fact that his defense counsel did not appear to understand the differences. The majority indicated that the charge of crimes against humanity was a more serious charge than violation of the laws and customs of war and that it was not clear that Erdemovic understood the distinction. Judge Li vigorously disputed this point. As a result, the case was sent back to a new Trial Chamber to allow Erdemovic to replead in full knowledge of the nature of the charges and the consequences of his plea.55 On remand, Erdemovic pled guilty to the

52. The Prosecutor did present evidence of a massacre at the Branjevo farm but not that Erdemovic had killed any one there. See Prosecutor v. Erdomovic, Case No.: IT-96-22A, Judgement of 7 October 1997, para. 9. 53. See id. 54. Id. Judgement of 7 October 1997, para. 16. 55. Id. at Disposition 5.

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alternative charge of a violation of the laws and customs of war, rather than a crime against humanity. After a sentencing hearing, the new Trial Chamber sentenced Erdemovic to five years imprisonment, less the time already spent in custody. DURESS AS A COMPLETE DEFENSE TO CRIMES AGAINST HUMANITY OR WAR CRIMES A majority of the Appeals Chamber, Judges McDonald, Vohrah and Li, found that duress does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings.56 As a result, the majority accepted the guilty plea and was not prepared to find it equivocal.57 Two members of the Appeals Chamber, Judges Cassese and Stephen, dissented from this view and were prepared to find that, under certain limited conditions, duress or extreme necessity could operate as a complete defense to indictments alleging war crimes or crimes against humanity. In their opinion, therefore, the guilty plea should not have been accepted. This stark division between the judges evoked a number of separate opinions. APPROPRIATE SOURCES OF LAW ON THE AVAILABILITY OF THE DEFENSE OF DURESS Judges McDonald and Vohrah, in their Joint Separate Opinion, first asked what sources they might use in answering the question of the availability of the defense of duress in this case. They quoted article 38 of the Statute of the International Court of Justice that, although only directly applicable to the World Court, is generally regarded as stating the appropriate sources of international law.58 They found no applicable treaty
Id. para. 19. Id. Statute of the International Court of Justice, 26 June, 1945, art. 38, 59 Stat. 1055 (entered into force 24 October 1945 [hereinafter ICJ Statute]. It states: (1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. (2) This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. Id.
56. 57. 58.

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law on the subject of duress as a defense, thus the Appeals judges looked for custom emanating from the post WWII military tribunals and national courts. (1) Custom Judges McDonald and Vohrah insisted that the only cases they were willing to consider relevant were the cases that related to duress as a defense where the charges were of killing innocent people. Although the judges noted that the International Law Commission concluded that the post World War II military tribunals of nine nations considered duress as a complete defense,59 they distinguished most of the cases cited. In fact, they stated that the only cases supporting duress as a complete defense were the British Military Tribunal case of Jepson60 (which was overruled by both the Stalag Luft III61 case and the Feurstein62 case) and the Einsatzgrupen63 case decided by a United States military tribunal. The latter case was largely discounted as it failed to cite any precedent for the proposition that duress affords a complete defense, was contrary to U.S. common law precedent, and was directly contradicted by the current U.S. Manual for Courts-Martial.64 Judges McDonald and Vohrah also noted that the International Law Commission had conceded that [t]here are different views as to whether even the most extreme duress can ever constitute a valid defence or extenuating circumstance with respect to a particularly heinous crime, such as killing an innocent human being.65 Despite numerous citations to national cases66 that appeared to accept
59. See Report of the International Law Commission on the work of its forty-eighth session, 6 May-26 July 1996, U.N. GAOR, 51st Sess., Supp. No. A/51/10 (1996) [hereinafter 1996 ILC Report]. 60. See Case of Gustaf Alfred Jepson and Others, Proceedings of a War Crimes Tribunal held at Luneberg (13-23 August, 1943) judgment of 24 August 1946, Law Reports, Vol. XV, at 172. 61. See Trial of Max Wielen and Seventeen Others (Stalag Luft III case), Law Reports, Vol. XI, at 33. 62. See Trial of Valentine Feurstein and Others (Feurstein Case), Proceeding of the Court held at Hamburg (4-24 Aug. 1948), Law Reports, Vol. XV, at 173. 63. See Trial of Otto Ohlendorf (Einsatzgruppen Case), Trials of War Criminals, Law Reports, Vol. IV, at 480. 64. See U.S. MANUAL FOR COURTS-MARTIAL RULE 916(h) (2000 ed.). Duress is a defense to any offense except killing an innocent person. Id. 65. 1996 ILC Report, supra note 48, at 77. 66. See Prosecutor v. Erdemovic, supra note 3 and cases cited therein; Joint Separate Opinion of Judge McDonald and Judge Vorhrah, para. 47; Llandovery Castle Case (German Supreme Court 1920), English translation printed in 16 AMER. J. INTL L. 708 (1922); Mueller (1949 Belgian Military Court and Belgian Court of Cassation); 1949 Annual Digests and Reports of Public International Law Cases, 400-403; Attorney-General of the

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the notion of duress as a complete defense to murder, the judges either distinguished the particular case or discounted it for a variety of reasons and refused to accord the principle any status as customary international law. Even the trials carried out under the London Charter of 1945 and Control Council Law No. 10, although created by the four allied powers and in that sense international, were regarded by the judges as applying national law. Judges McDonald and Vohrah ultimately concluded that no rule may be found in customary international law regarding the availability or the non-availability of duress as a defense to a charge of killing innocent human beings.67 (2) General Principles of Law The judges next examined whether general principles of law, recognized as a source of international law,68 revealed a rule on duress. They undertook a limited survey of the treatment of duress in the worlds legal systems.69 Within the civil law countries, the judges determined that civil law systems . . . consistently recognise duress as a complete defence to all crimes.70 They quoted from a variety of civil codes, ranging from Chile to Finland.71 Turning to the common law systems, the judges examined a wide range of national laws.72 Some countries allowed duress
Government of Israel v. Eichmann (1962 Supreme Court of Israel), English translation printed in 36 INTL L. REP. 277, 318 (1962) (E. Lauterpacht ed. 1968); Papon Case, unpublished transcript of Judgment of 18 Sept. 1996, Cour DAppel de Bordeaux, Chamber dAccusation, Arrt du 18 Sept. 1996, No. 806; Retzlaff. (Soviet Military Tribunal) discussed in The Peoples Verdict A Full Report of the Proceedings at the Krasnodar and Kharkov German Atrocity Trials 65 (London-New York). Sablic (Military Court of Belgrade, Yugoslavia) Decision of 26 June 1992; Bernadi and Randazzo, unpublished text, Italian Court of Cassation, 14 July 1947; Sr. (Italian Court of Cassation) printed in Giurisprudenza Completa Della Corte Suprema di Cassazione, sez. pen., 1947, No. 2557, at 414; Masetti (Italian Court of Cassation 17 Nov. 1947) printed in Massimario della Seconda Sezione della Cassazione, 1947, No. 2567, at 416; S. and K. (Landesgericht of Ravensburg, 21 May 1948) printed in II Justiz and NS-Verbrechen at 521, 526-527 (1969); Warsaw Ghetto Case (Court of Assize of Dortmund, 13 March 1954) XII Justiz und NSVerbrechen at 340-341 (1974); Wetzling (Court of Assize in Arnsberg, 12 Feb. 1958) XIV Justiz und NS-Verbrechen at 563, 616-623 (1976). 67. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, at para. 55. 68. I.C.J. Statute, supra note 47, art. 38(1)(c). 69. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, para. 58. 70. Id. para. 59. 71. See id . 72. See Prosecutor v. Erdemovic, Case No.: IT-96-22-A, 72. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint Separate Opinion of Judge

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to operate as a complete defense for all crimes except a few very serious crimes such as murder or treason.73 Other states, such as Japan or China, engaged in a balancing analysis and asked whether the harm produced by averting the danger to the accuseds life exceeded the harm that was sought to be avoided.74 Duress operated as a complete defense only where preserving the accuseds life was seen as avoiding a greater harm than killing the victims.75 Virtually all legal systems were prepared to take duress into account when determining whether to mitigate punishment or sometimes even to lessen the offense charged.76 After this detailed survey of the treatment of duress as a defense or mitigation, the judges concluded that:
The rules of the various legal systems of the world are, however, largely inconsistent regarding the specific question whether duress affords a complete defence to a combatant charged with a war crime or a crime against humanity involving the killing of innocent persons.77

The judges noted, however, that: the common law systems throughout the world, with the exception of a small minority of jurisdictions in the United States . . . reject duress as a defense to the killing of innocent persons. 78 Some states that allowed duress to operate as a complete defense required proportionality between the harm caused and the harm threatened.79 Some cases did not permit duress as a complete defense where >it can be fairly expected of the actor that he suffer the risk . . . if he stands in a special legal relationship to the danger.80 The common law rule that rejected duress as a complete defense to murder, even when the accused would suffer death, was seen as arising from the assertion Yof a moral absolute.81 This moral absolute had two parts; first, the protection of human life and second, the notion that the accused had no right to prefer his own life to that of another person.82 A number of British cases were cited as stating unequivocally that in such circumstances, the accused ought rather to die himself, than kill an

McDonald and Judge Vohrah, 7 October 1997, para. 60. 73. See id. 74. See id. 75. See id. para. 61. 76. See id. para. 63-65. 77. Id. para. 67. 78. Id. para. 63-64. 79. Id. para. 68. 80. Id. para. 69 (quoting from the German Penal Code, 35(1)). 81. Id. para. 71. 82. See id.

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innocent,83 or that the law denies to a man the right to take an innocent life even at the price of his own or anothers life.84 CHOOSING NORMATIVE PURPOSES AS A GUIDE WHEN NO RULE EMERGES Having failed to find treaty law, customary law or general principles of law that answer the question of whether duress can operate as an exculpatory defense to crimes against humanity or war crimes involving the killing of civilians, one might have expected the judges simply to reject the notion of such a defense. However, Judges McDonald and Vohrah delved further in seeking to justify their rejection of the defense.85 Perhaps they were somewhat unsettled by the fact that there are a good number of cases that permit the defense of duress even for war crimes.86 The lack of a consistent rule on the exculpatory effect of the defense of duress persuaded the judges to examine the context of the creation of the Tribunal, including the crimes over which it exercised jurisdiction and its mandate Y in the Statute . . . in relation to >serious violations of international humanitarian law.87 The judges feared that allowing duress to operate as a complete defense would bring in its wake a panoply of evils such as securing impunity for criminals who collude with their agents in threatening them with death if they do not obey their commands. The judges recognized that they were choosing to reject duress in order that the law should serve normative purposes in light of its social, political and economic role.88 The crucial factor that persuaded the judges to reject duress as a defense to charges of war crimes and crimes against humanity was that the Tribunal was dealing with the most heinous crimes known to humankind . . . .89 The judges noted that national courts and national criminal codes are only dealing with ordinary domestic crimes, whereas the Tribunal is dealing with crimes committed in armed conflicts of extreme violence with egregious dimensions.90 They were concerned about the normative effect of the rules attaching to duress upon soldiers bearing weapons of destruction and upon the commanders who control them in armed conflict

83. See, e.g. id., para. 71 (quoting Lord Hale, Pleas of the Crown 51 (1800) vol. 1, p. 51). See id. para. 71 n. 153. 84. See, e.g., id. para. 71 (quoting Regina v. Howe and Others [1987] 1 ALL ER 777 at 785). See id. para. 71 n.155. 85. See id. para. 66-67. 86. See id. 87. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, para. 72. 88. Id. para. 75/ 89. Id. 90. Id.

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situations.91 They noted that one of the main objectives of international humanitarian law is the protection of the weak and vulnerable in such a situation where their lives and security are endangered.92 The judges meant the rule rejecting duress to operate as a deterrent, and they noted that situations such as the one in this case are not infrequent during armed conflict. Waxing more philosophic, the judges readily admitted that social policy and law are never truly separate and that ultimately the choice of a legal rule is grounded in social policy. The basis of Judges McDonald and Vohrahs rejection of duress as a defense to war crimes or crimes against humanity rests on the notion that regular domestic criminal murder is distinct from, and therefore not useful as a guide for, the international criminal offenses of war crimes or crimes against humanity. They regarded the latter crimes as different in kind from regular domestic murder and they saw the soldier cast in a protective role towards civilians under the rubric of international humanitarian law governing the conduct of armed hostilities. That being so, they refused to use the test of whether an ordinary person in similar circumstances would prefer his own life to shooting the victims. DURESS AS A DEFENSE WHERE DEATH IS THREATENED IF ILLEGAL ORDERS ARE NOT OBEYED Judges McDonald and Vohrah then examined the exceptional situation of the Erdemovic case. They observed that the dissenters concluded that although the rejection of duress may be justified in most cases, the Erdemovic situation could be distinguished by the fact that the victims were going to be shot by the firing squad anyway. This then was not a situation where the accused was choosing his own life over that of his victims. Regardless of what Erdemovic did, the Muslim civilians were going to be shot. If Erdemovic had disobeyed his commander, the result would have been one more person dead, namely Erdemovic. The 1948 Italian case of Masett93i accepted the argument that, in such extraordinary situations, the defense of duress should be accepted. The court acquitted the accused on the ground that the sacrifice of Masettis life would have been to no avail because the victims were going to be executed anyway. The decision to accept duress in such circumstances is referred to by the Tribunal as the Masetti approach.94 Judges McDonald and Vohrah
Id. Id. See id. and citation therein at n. 169; see also Masetti (Italian Court of Cassation 17 Nov. 1947) printed in Massimario della Seconda Sezione della Cassazione, 1947, No. 2567, at 416. 94. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint and Separate Opinion of
91. 92. 93.

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carefully rejected this approach. The judges described the Masetti approach as based on utilitarian logic95 that they did not accept. They refused to balance harms for and against killing because of the context in which the rule operates under the Tribunals mandate. They wanted to send a clear message to soldiers that duress will not be available as a defense to any killing of innocent civilians during armed conflict. In any event, trying to weigh harms in any context is extremely difficult and the judges determined that the better approach was to consider duress in mitigation of punishment. In rejecting the Masetti approach, the judges wondered whether they were creating a law demanding more than is reasonable, that is, what the proverbial ordinary person could be expected to do in similar circumstances. The judges quoted from some eloquent passages which announce in various forms that law is ineffective in the deepest sense, indeed . . . hypocritical, if it imposes on the actor who had the misfortune to confront a dilemmatic [sic] choice, a standard that his judges are not prepared to affirm that they should and could comply with if their turn to face the problem should arise.96 This interesting discussion was brought to an abrupt halt by the assertion that the judges rejection of the Masetti approach does not depend upon what the reasonable person is expected to do. [The judges] assert an absolute moral postulate which is clear and unmistakable for the implementation of international humanitarian law.97 The absolute moral postulate from which the judges appear to devise the rule is that a soldier can never kill unarmed civilians even where his refusal to kill the civilians will result in the soldiers own death and even where his own death will not prevent the civilians deaths. Such an absolute rule is bound to be controversial. Despite asserting an absolute moral postulate, the judges attempted to justify their rule by pointing out that soldiers are expected to exercise fortitude and a greater degree of resistance to a threat than civilians, at least when it is their own lives which are being threatened 98 So the question for the judges became: what may be expected of ordinary soldiers who by the very nature of their occupation, must have envisaged the possibility of violent death in pursuance of the cause for which they fight.99 Given the
Judge McDonald and Judge Vohrah, 7 October 1997, para. 79. 95. Id. para. 80. 96. Id. para. 82 (quoting American Law Institute Model Penal Code 2.09, cmt. 2 (1985)). 97. Id. para. 83. 98. Id. para. 84. 99. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, para. 84. One might reasonably reply that although the soldier may envisage violent death at the hands of the enemy (or even from

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known occupational hazard of death for soldiers engaged in combat, the judges concluded that the defense of duress was unacceptable where the accused killed innocent persons. Because of the special protective role given by international humanitarian law to soldiers towards civilians, the judges concluded that suffering death is the unwavering rule for the soldier rather than killing civilians, regardless of whether the soldiers death will save the civilians. Because the judges recognized that duress does operate as a mitigation of punishment under the ICTY Statute,100 their argument then took an extraordinary turn. They reasoned that because mitigation of punishment is available, the law does not in fact expect the soldier to throw away his life in vain. What the judges seemed to imply is that soldiers who find themselves in the same situation as Erdemovic in the future, should carry out the order to shoot (despite the fact that such killing is illegal and duress will not exonerate them) thereby saving their own lives, in the knowledge that duress will operate to save them from harsh punishment. In fact the judges recognized that in some cases the offender may receive no punishment at all.101 The whole tenor of this part of the opinion undermines the high moral tone of the insistence that the rejection of duress as a defense was based on the necessity of having an absolute rule for soldiers engaged in combat. The Geneva Convention require states to instruct their troops in the laws of war.102 Trying to formulate the rule that an instructor would announce in light of judges McDonalds and Vohrahs opinion, is a considerable challenge but it might go something like this:
Soldiers are never allowed to shoot unarmed civilians. If your superior officer orders you to shoot civilians, that is a manifestly illegal order and you will be held responsible if you obey the command although your punishment may be reduced because of the order. If your superior officer orders you to shoot civilians and tells you that if you refuse to obey his order, you will be lined up with the civilians and be shot by a firing squad that is ready to carry out the officers orders, you will still be held responsible for the civilians deaths if you join the firing squad.
friendly fire), he can hardly expect violent death at the hands of his superior officer. 100. See ICTY Statute, supra note 6, art. 7(4) 101. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, para. 85. 102. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 3314, 6 U.S.T. 3114, art. 47 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces At Sea, 12 August 1949, 75 U.N.T.S. 3217, 6 U.S.T. 3217, art. 48; Geneva Convention Relative to the Treatment of Prisoners of War, supra note 24, art. 127; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, supra note 23, art. 144.

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If you decide to save your own life and join the firing squad, however, duress will operate to mitigate your punishment and may, in fact, result in no punishment being imposed, although you would still, technically, be guilty of war crimes or crimes against humanity.

Is there a responsible lawyer who could in good conscience tell a soldier-client that he should not join the firing squad under such circumstances? Having concluded that duress is never a full defense to war crimes or crimes against humanity, the judges determined that Erdemovics guilty plea was not equivocal. They noted that the Trial Chamber had incorrectly required corroborating evidence of the defense. Because of other issues concerning the accuseds lack of understanding of the distinction between war crimes and crimes against humanity,103 the plea was determined not to be informed and the case was remanded to another Trial Chamber for repleading. DISSENTING SEPARATE OPINION OF JUDGE LI The separate opinion of Judge Li is interesting because he concluded, together with Judges McDonald and Vohrah, that if the act was a heinous crime, for instance, the killing of innocent civilians or prisoners of war, duress cannot be a complete defence, but can only be a ground of mitigation of punishment if justice requires.104 Nonetheless, after examination of military tribunals, he concluded that generally duress can be a complete defence if the following requirements are met, (a) the act was done to avoid an immediate danger both serious and irreparable, (b) there was no other adequate means to escape, and (c) the remedy was not disproportionate to the evil.105 In this case, the exception to accepting duress as a complete defense was applicable because the act charged was heinous and international humanitarian law is quintessentially concerned with the protection of innocent civilians. Judge Li would not have remanded the case to the Trial Chamber because he regarded it as quite clear that Erdemovic understood the charge to which he was pleading and was only asserting duress as a ground of mitigation of punishment and not as a defense. Judge Li also argued forcefully that there was no indication, from any source, that crimes against humanity are necessarily more serious than war crimes.
103. See Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 91. 104. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Separate and Dissenting Opinion of Judge Li, 7 October 1997, para. 5. 105. Id.

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THE TWO SEPARATE AND DISSENTING OPINIONS OF JUDGE CASSESE AND JUDGE STEPHEN Both Judges Cassese and Stephen concluded that, because of the circumstances of Erdemovics case, duress could operate as a complete defense and that the case should therefore be remanded for repleading with clear knowledge of the possibility of exculpation, or in the event that Erdemovic decided not to plead guilty, a trial. SEPARATE AND DISSENTING OPINION OF JUDGE CASSESE Judge Cassese noted that Judges McDonald and Vohrah found no specific international law on duress. In such circumstances, he concluded, they should have applied the general rule, namely, that duress can operate as a defense to murder under certain conditions. He criticized the plurality opinion for simply adopting common-law concepts while rejecting the civil law approach. He then undertook an examination of the idea of duress and the conditions required for its applicability. He distinguished duress, which involved threats or compulsion [by] a third party from necessity, which is a broader concept involving duress from causes other than third parties such as extreme hunger where life is threatened by lack of food. He concluded that duress required four conditions to be met:
(i) the act charged was done under an immediate threat of severe and irreparable harm to life or limb; (ii) there was no adequate means of averting such evil; (iii) the crime committed was not disproportionate to the evil threatened . . . . In other words . . . the crime committed under duress must be, on balance, the lesser of two evils; (iv) the situation leading to duress must not have been voluntarily brought about by the person coerced.106

He also added that if the accused had some special protective duty towards the victim, the defense may not be available, though he did not elaborate on this point. Specifically, he did not indicate whether he thought that a combatant had any special protective duty towards civilians that would vitiate the defense. One can only assume that Judge Cassese would not always conclude that combatants have such a duty towards civilians, sufficient to rule out the defense. Judge Cassese did not subscribe to the Prosecutions view that
106. Prosecutor v. Erdemovic, Case No.: IT-96-22A, Judgment, 7 October 1997, Separate Opinion of Judge Casesse, para. 16.

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customary international law precluded duress as a defense to murder. He undertook a detailed analysis of the British cases upon which the plurality relied and concluded that they do not, in fact, support the proposition that duress is unavailable to an accused charged with unlawful killing.107 Ultimately, he found only one Canadian case and British and U.S. Military Manuals that except duress as a defense to murder, which he pointed out is hardly a sufficient basis upon which to ground a customary rule. In fact, Judge Cassese found and discussed a good number of cases where courts assumed that duress was a complete defense to murder although under the facts presented the defense was not successful. Indeed, even in the Eichmann108 case in the Israeli Supreme Court, there was a discussion of the conditions to be met if a plea of constraint, necessity or coercion was to be met. Although Eichmann did not in fact raise the defense of coercion, the Court noted that the facts would not have supported such a plea, thereby implying that different circumstances could have supported such a defense. Judge Cassese then examined a number of cases where the defense of duress was successful in cases charging unlawful killing. He detailed a number of Italian cases, including the Masetti case, and a number of German cases. In some of these cases, the crimes in question were war crimes or crimes against humanity involving the killing of innocent persons. Judge Cassese thus concluded that no special customary rule has evolved in international law on whether or not duress can be admitted as a defence in cases of crimes involving the killing of persons.109 From the absence of a rule, Judge Cassese would have concluded that the Tribunal must apply the general rule on duress to all crimes, including the four preconditions for its application. He recognized that the proportionality requirement will often be the most difficult to meet and may perhaps never be met where the accused shoots the victim in order to save his own life110 but, where the life for a life situation is not present, it may be possible to satisfy the requirement. In any event, the defense should have been available to be presented to the trial court. Of course, he recognized that the availability of duress as a defense is severely restricted because the right to life is one of the most fundamental and precious human rights . . . .111 In a case, such as Erdemovics, where the victims will be
Id. para. 25. Attorney-General of the Government of Israel v. Eichmann, 36 I.L.R. 277 (Sup.Ct.Israel 1962). 109. Prosecutor v. Erdemovic, Case No.: IT-96-22A, Judgment, 7 October 1997, Separate Opinion of Judge Cassese, para. 40. 110. Judge Cassese does in fact relate such an instance where he believed duress should be upheld. See id. para. 47. 111. Id. para. 43.
107. 108.

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shot anyway by a firing squad, the law cannot demand that the accused sacrifice his own life112 for no benefit to anyone and no effect whatsoever apart from setting a heroic example for mankind . . . .113 The low military rank of the perpetrator may also make it more likely that he enjoyed no real choice when threatened with death. The law should not require acts of martyrdom.114 Judge Cassese considered mitigation of punishment, even the possibility of no punishment, insufficient if duress is proved. He pointed out that if there is a conviction, the court has ruled that the accuseds act is criminal, whereas if duress is accepted as an exculpatory defense the accused will be acquitted. Judge Cassese also criticized the Appeals Chamber for blatantly basing its refusal to accept duress as a defense on policy considerations. He believed that the Tribunal must apply lex lata, otherwise it would run the risk of violating the principle nullam crimen sine lege. As a result of Judge Casseses determination that duress can, under limited conditions, operate as a complete defense even to charges of war crimes or crimes against humanity, he would have remanded the case to the Trial Chamber to allow Erdemovic to replead. If Erdemovic raised the defense of duress, the Trial Chamber should then determine whether the evidence satisfied the stringent conditions for the plea. If it did, Erdemovic should be acquitted. THE SEPARATE AND DISSENTING OPINION OF JUDGE STEPHEN Judge Stephen concluded that because Erdemovic in his guilty plea disclosed evidence, which might have formed the basis of a complete defense, the plea should not have been accepted. The Trial Chambers factual conclusion that Erdemovic could not present evidence sufficient to meet the stringent requirements of the duress defense was improper because the Trial Chamber had no evidence at all before it. Judge Stephen found no rule of customary international law on duress and thus looked to general principles of law recognized by civilized nations.115 There he found duress accepted by the great majority of . . . legal systems, other than those of the common law.116 In the common law jurisdictions he did find an exception on the viability of the defense of duress in murder cases, but only when the choice offered was between the accuseds life and the life of another. Erdemovics case was clearly distinct from such a line of
Id. para. 44. Id. Id. para. 47. ICJ Statute, supra note 47, art. 38(1)(c). Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Separate and Dissenting Opinion of Judge Stephen, 7 October 1997, para. 25.
112. 113. 114. 115. 116.

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cases. The refusal to accept duress as a defense in murder cases had, in any event, been heavily criticized in common law jurisdictions. The exception for murder was based entirely on the concept of the laws refusing to allow the accused to prefer his own life over that of an innocent victim, and many cases had referred to the maxim that the accused ought rather to die himself than kill an innocent. The common law cases were based on circumstances concerning the choice between saving the life of the accused or saving the life of the victim, not between saving the life of the accused or ensuring that the accused was killed along with the victims. Judge Stephen noted that in Erdemovics case it was never possible to save the victims lives. Judge Stephen then undertook a detailed description of a number of English cases where the unavailability of the defense of duress in murder cases was heavily criticized, briefly ruled available, and then rapidly restored to the former rule of unavailability.117 He concluded it was illogical to allow duress to operate in mitigation of punishment but not as a defense. All the English cases involved one life or another rather than one life or both lives, as in Erdemovics case. A review of various authors also persuaded Judge Stephen that duress should sometimes operate as a complete defense. Proportionality must always play a role in determining whether the defense of duress is available. The evil perpetrated by succumbing to the duress must not outweigh the evil perpetrated if the accused had not succumbed to the duress. From the cases he reviewed and a discussion of the reasons for the rules and the exceptions, Judge Stephens deduced a general principle of law accepting duress as a defense to murder. He was ready to apply this principle in international jurisprudence at least where the accused is not simply preferring his life over another persons life but is choosing, under extreme duress, to save his own life where the victims will die no matter what the accused does. Judge Stephen agreed that the case should be remanded so that Erdemovic could replead to the charges in full knowledge of the consequences. THE IRRECONCILABLE DIFFERENCE IN THE JUDGES OPINIONS The Erdemovic case reveals a sizable chasm in the thinking of the Appeals Chamber judges both with respect to the availability of the defense of duress in war crimes trials and on the question of appropriate sources of law applicable in the Tribunal. Judges McDonald, Vohrah, and Li were not prepared to allow the defense of duress to exonerate a soldier accused of war crimes or crimes against humanity despite the fact that they recognized
117.

See id. para. 29.

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that most countries do allow such a defense to murder, that certain international tribunals had allowed such a defense, and that Erdemovics case presented a distinctive factual scenario where his refusal to obey his commanding officers illegal order would not have resulted in the saving of the victims lives. These judges wanted an absolute rule prohibiting the shooting of civilians made applicable to all soldiers in combat. Judges Cassese and Stephen, in their separate dissenting opinions, thought there was ample precedent permitting the defense of duress, in both domestic and international courts, for murder and for the killing of civilians in certain very limited circumstances. They thought that the factual peculiarity of Erdemovics case, where none of the victims would be saved, meant that it was possible that Erdemovic might be able to meet the stringent conditions applicable to the availability of the duress defense and that Erdemovic was entitled to a trial on the issue. As for appropriate sources of law to be applied by the Tribunal, Judges McDonald and Vohrah found no applicable treaty, customary rule, or general principles of law. They therefore looked to the overall purposes of the Tribunal and of international humanitarian law, and, rejecting utilitarian logic,118 based their judgment on an absolute moral postulate.119 Such a source of law may come close to resembling the personal moral views of particular judges and thus may be expected to change as the judges change. Judge Cassese also found no applicable treaty or customary rule but, from the absence of such sources, he concluded that the Tribunal should apply the general rule on duress, which he found available as a defense in certain limited circumstances. Judge Stephen also concluded that the appropriate source of law was general principles of law recognized by civilized nations,120 which he concluded did not prevent the availability of the defense of duress in the unusual circumstances of Erdemovics case. DURESS UNDER THE STATUTE OF THE INTERNATIONAL CRIMINAL Article 31 of the Rome Statute of the International Criminal Court is titled Grounds for excluding criminal responsibility and specifically includes duress:
1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that persons conduct: . . .

118. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, para. 80. 119. Id. paa. 83. 120. See id. para. 1(d)(ii).

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(d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and responsibly to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that persons control.121

The ground of duress122 as a basis for excluding criminal responsibility is included in the ICCs Statute despite the fact that the Statute also treats the defense of superior orders in much the same way as the ICTY and ICTR Statutes. Article 33 of the ICCs Statute states:
1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.123

The ICCs Statutes treatment of the defense of duress and the defense of superior orders as separate defenses means that the statute contemplates that there may be some crimes within the jurisdiction of the Court involving superior orders, even superior orders that are manifestly unlawful, but which may, nevertheless, permit a defense of duress. Perhaps the main legal flaw of the majoritys analysis in the Erdemovic case was the assumption that the type of duress under which a soldier finds himself when issued a manifestly illegal order to kill civilians is always the
121. Rome Statute of the International Criminal Court, art. 31, U.N. Doc. 32/A/CONF.183/9, reprinted in 37 I.L.M. 999 (1998). 122. It is clear from art. 31, para. 1(d)(ii) that the defense of necessity is also included in the ICC Statute. 123. Id. art. 33, paras. 1-2.

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same or, if not the same, should be treated similarly by the Tribunal. While it is true that the defense of duress often accompanies the defense of superior orders, and that there are always elements of duress in superior orders, the levels of duress attached to superior orders may be of a fundamentally differing degree. In Erdemovics case, if his commanding officer has simply said Shoot those civilians and had not threatened to kill Erdemovic if he disobeyed, there would have been some level of duress applied to Erdemovic. Soldiers certainly feel pressure to obey their commanding officers, but the duress involved would not have given rise to any separate defense of duress. On the other hand, when the manifestly illegal order is also accompanied with threats to kill (or maim, or rape, or cause other grievous bodily harm to the soldier or to someone for whom he could reasonably be expected to have special concern) then the separate defense of duress should be available even when the crimes alleged are the most heinous and committed against persons protected by international humanitarian law. Judge Cassese carefully distinguished the defense of superior orders from the defense of duress and noted that [s]uperior orders may be issued without being accompanied by any threats to life or limb.124 He would have allowed Erdemovic a defense of duress but only in carefully limited circumstances as outlined above.125 The crucial question then is whether all duress in the context of superior orders should receive the same legal treatment. The majority thought that all levels of duress should be rejected as grounds for a defense to war crimes or crimes against humanity. The dissenters were prepared to distinguish levels of duress, and while dismissing some levels of duress as not giving rise to a defense would, nevertheless, preserve the defense of duress in the context of superior orders to commit a manifestly illegal order, provided certain stringent conditions were met. The dissenters careful gradation of culpability ultimately seems fairer, especially in the peculiar factual circumstances of the Erdemovic case. The judges who will sit on the International Criminal Court will no doubt have to grapple with the inter-relationship of the defense of superior orders and the defense of duress. They should find the dissenting opinions of Judges Cassese and Stephen illuminating.

124. Prosecutor v. Erdemovic, Case No.: IT-96-22, Appeals Chamber Judgement, 7 October 1997, Separate Dissenting Opinion of Judge Cassese, para. 15; see also, GEERT-JAN G. J. KNOOPS, DEFENSES IN CONTEMPORARY INTERNATIONAL CRIMINAL LAW, 166-168 (2001). 125. Prosecutor v. Erdemovic, Case No.: IT-96-22, Appeals Chamber Judgement, 7 October 1997, Separate Dissenting Opinion of Judge Cassese, paras. 43-46.